Canadian Criminal Evidence/Credibility/Prior Inconsistent Statements

Prior inconsistent statements are the primary manner of impeaching a witness’s credibility.

Section 10 and 11 of the CEA provide limitations on the issue and manner of impeachment with written or oral statements. These provisions are purely procedural and do not provie and substantive rights.[1]

Section 10 states:

Cross-examination as to previous statements
10. (1) On any trial a witness may be cross-examined as to previous statements that the witness made in writing, or that have been reduced to writing, or recorded on audio tape or video tape or otherwise, relative to the subject-matter of the case, without the writing being shown to the witness or the witness being given the opportunity to listen to the audio tape or view the video tape or otherwise take cognizance of the statements, but, if it is intended to contradict the witness, the witness’ attention must, before the contradictory proof can be given, be called to those parts of the statement that are to be used for the purpose of so contradicting the witness, and the judge, at any time during the trial, may require the production of the writing or tape or other medium for inspection, and thereupon make such use of it for the purposes of the trial as the judge thinks fit.

Deposition of witness in criminal investigation
(2) A deposition of a witness, purporting to have been taken before a justice on the investigation of a criminal charge and to be signed by the witness and the justice, returned to and produced from the custody of the proper officer shall be presumed, in the absence of evidence to the contrary, to have been signed by the witness.

R.S., 1985, c. C-5, s. 10; 1994, c. 44, s. 86.

Cross-examination as to previous oral statements
11. Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before that proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.

Section 10 permit cross examination on a statement without showing the statement being shown to the witness, but the judge has discretion to require the statement to be shown to clarify things.[2] Thus, when impeaching on a written statement, counsel may hold back the written statement from the witness while questioning on the existence of the prior statment until such time as counsel attempts to impeach the party.

This section addresses cross examination of the opposing party's witnesses and not the calling party's witnesses as contemplated in s. 9.[3]

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

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